Judge Mark E. Windham, Case 21STLC03181 2022-10-17 Tentative Ruling

Judge: Mark E. Windham, Case: 21STLC03181, Date: 2022-10-17 Tentative Ruling

Case Number: 21STLC03181 Hearing Date: October 17, 2022 Dept: 26

MOTION TO COMPEL APPEARANCE AT DEPOSITION

AND REQUEST FOR SANCTIONS

(CCP § 2025.450)

TENTATIVE RULING:

Defendant Amanda Villanueva’s Motion to Compel Appearance and Testimony at Deposition and Request for Sanctions is GRANTED. PLAINTIFF JULIANA DEL RIO IS ORDRED TO APPEAR FOR DEPOSITION AT A DATE AND TIME DETERMINED BY DEFENSE COUNSEL, WITHIN 20 DAYS OF THIS ORDER. FURTHERMORE, PLAINTIFF JULIANA DEL RIO AND COUNSEL OF RECORD ARE JOINTLY AND SEVERALLY ORDERED TO PAY SANCTIONS OF $572.00 TO DEFENSE COUNSEL WITHIN 20 DAYS’ SERVICE OF THIS ORDER.

ANALYSIS:

Plaintiff Juliana Del Rio (“Plaintiff”) filed the instant action for motor vehicle negligence against Defendant Amanda Villanueva (“Defendant”) on April 22, 2021. Defendant filed an Answer to the Complaint on September 8, 2021.

On August 12, 2022, Defendant filed the instant Motion to Compel Deposition and Request for Sanctions. Plaintiff filed an opposition on September 28, 2022.

Discussion

Code of Civil Procedure section 2025.450, section (a) states in relevant part:

If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.

(Code Civ. Proc., § 2025.450, subd. (a).) The motion must also “set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice” and “be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc., § 2025.450, subds. (b)(1), (2).)

Defendant served Plaintiff with a Notice of Deposition on February 23, 2022, setting the deposition for March 31, 2022. (Motion, Morris Decl., ¶3 and Exh. A.) The deposition was rescheduled at Plaintiff’s request, due to a conflict with Plaintiff’s counsel’s schedule. (Motion, Morris Decl., ¶3; Opp., Gabriel Decl., ¶6.) Defendant served Plaintiff with the second Notice of Deposition on April 22, 2022, setting the deposition for May 12, 2022. (Motion, Morris Decl., ¶4 and Exh. B.) The second deposition date was also continued at Plaintiff’s request because she was unable to get the day off work. (Motion, Morris Decl., ¶4; Opp., Gabriel Decl., ¶7.) Defendant noticed the third deposition date for July 20, 2022. (Motion, Morris Decl., ¶5 and Exh. C.) Plaintiff was apparently unaware of this deposition notice due to problems with the email system at Plaintiff’s counsel’s office. (Opp., Morris Decl., ¶¶8-9.) Upon learning that the deposition was scheduled for July 15, 2022, Plaintiff’s counsel informed defense counsel he was unavailable until September 2022 and the deposition could not forward that date. (Id. at ¶9.) Defendant then filed this Motion.

The Court finds that the parties’ communications support an adequate meet and confer effort. Following the two deposition dates that were rescheduled at Plaintiff’s request, defense counsel was unable to get ahold of Plaintiff’s counsel’s office to coordinate a new deposition date. (Id. at Exh. D.) Also, Plaintiff’s counsel’s conduct exacerbated the scheduling difficulties. The notices were sent far in advance of the deposition dates—at least three weeks in advance—yet Plaintiff’s counsel made no apparent effort to clear the scheduling conflicts. Also, inexcusably, Plaintiff’s counsel did not inform defense counsel that he would be out of the country for four weeks from July 19, 2022 to August 19, 2022. (See Opp., Gabriel Decl., ¶¶6-11.) Likewise, it was inexcusable that Plaintiff’s counsel made no effort to reach out to defense counsel while the office email system was not functioning.

Based on the foregoing, the Court finds the meet and confer requirement has been satisfied and that Defendant is entitled to an order compelling Plaintiff’s attendance at deposition. An award of sanctions is also appropriate due to Plaintiff and Plaintiff’s counsel’s failure to make a reasonable effort to cooperate in the taking of her deposition. Contrary to the argument of Plaintiff that an attorney can only be sanctioned for advising conduct that is a misuse of a discovery process, the sanctions statute also allows an attorney to be sanctioned for their own misuse of the discovery process. (See Code Civ. Proc., § 2023.030, subd. (a).)

Defendant’s request for monetary sanctions is granted in the amount of $572.00 based on fours of attorney time billed at $133.00 per hour and $60.00 in costs. (Id. at ¶8.)

Conclusion

Moving party to give notice.